Sahafzadeh-Taeb v. Taeb (In re Sahafzadeh-Taeb)

• Decision Date: 26 August 2019
• Docket Number: A152178
• Citation: 251 Cal.Rptr.3d 610,39 Cal.App.5th 124
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE the MARRIAGE OF Majgan SAHAFZADEH-TAEB AND Hamid TAEB. Majgan Sahafzadeh-Taeb, Respondent, v. Hamid Taeb, Appellant.

39 Cal.App.5th 124

251 Cal.Rptr.3d 610

IN RE the MARRIAGE OF Majgan SAHAFZADEH-TAEB AND Hamid TAEB.

Majgan Sahafzadeh-Taeb, Respondent,

v.Hamid Taeb, Appellant.

A152178

Court of Appeal, First District, Division 1, California.

Filed August 26, 2019

Whipple, Mercado & Associates, LLP, Mary C. Whipple, San Ramon, for Respondent.

Trigger Law office, Michelle Elizabeth Trigger, Roseville, for Appellant.

Banke, J. Appellant Hamid Taeb and his attorney Michelle Trigger appeal from a Code of Civil Procedure section 128.5¹ sanctions order, issued after Trigger failed to appear for trial in this dissolution case. We reverse as to Taeb and affirm as to Trigger.

We publish this opinion to make explicit that no vestige remains of the holdings in San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4th 1306, 203 Cal.Rptr.3d 34 ( San Diegans ) concerning the requirements of section 128.5. Among other things, San Diegans held that an objective standard applies when determining whether a party's or an attorney's conduct is sanctionable under section 128.5, as it does under section 128.7. ( Id. at pp. 1314–1317, 203 Cal.Rptr.3d 34.) As we explain, section 128.5 has since been amended to specifically overrule San Diegans on this point.²

The law concerning the kind of conduct sanctionable under sections 128.5 and 128.7 has, thus, largely returned to its pre- San Diegans state—with a more stringent standard requiring subjective bad faith applicable to section 128.5, and a lesser standard, requiring only objective bad faith, applicable to section 128.7. As we further explain, under this pre- San Diegans case law, on which the trial court relied, the conduct of counsel here was sanctionable under section 128.5.

BACKGROUND

The relevant facts are undisputed. In June and August 2016, respondent filed requests for orders concerning real property jointly owned by the parties. The family law court set the case for a readiness conference on January 30, 2017, in advance of the scheduled trial date, February 7.

Counsel for both parties contacted the court clerk on January 27 (10 days before the scheduled trial date), stated they were ready to proceed to trial, and asked that they be excused from appearing three days later at the readiness conference. In light of the attorneys' representations, the court excused their appearances and ensured that its calendar on February 7 was clear for a day-long trial.

When the court called the matter for trial on February 7, both parties and counsel for respondent were present. Trigger was not. In response to the court's inquiry as to why she was not present, Taeb responded that his lawyer "had another trial in Sacramento for a few days, and it's still going on." Opposing counsel then stated Trigger had notified her office the previous afternoon, stated her Sacramento trial was running longer than expected, and asked opposing counsel to agree to a continuance, which counsel had refused to do, pointing out the requests for orders had been pending for at least six months. Opposing counsel further complained that Trigger had failed to comply with other requirements of the trial setting order, including failing to provide copies of exhibits, failing to file a trial brief, and failing to provide an income and expense declaration, and asked that Taeb be barred from presenting any such items at trial.

The clerk then advised the court specially appearing counsel was on his way to formally ask for a continuance, and Taeb, at that point, told the court Trigger had sent him a motion he was to give to the court. The court waited for specially appearing counsel to arrive, which he did shortly.

Counsel forthrightly confirmed he was not ready to proceed with trial, but was there on behalf of Trigger to ask for a "good cause" continuance. When the court asked counsel why Trigger had assured the court on January 27 she was ready to proceed to trial, counsel said he did not know and, in fact, had not read the moving papers. Commenting counsel was not making an effective appearance, the court took a recess, giving him a half hour to read the papers and stating the situation was "highly irregular." The court also observed the situation was "not fair to the petitioner to have to pay her attorney to sit" in the court while specially appearing counsel reviewed the motion and told opposing counsel she could "elect to seek attorney's fees for her client."

Following the recess, specially appearing counsel repeated what was in the moving papers—that Trigger thought her Sacramento trial was going to end by January 26, but her client had unexpectedly exercised his right to testify, resulting in testimony continuing for several additional days. Trigger had also, the prior afternoon, contacted opposing counsel in the instant case, advising her of the continuation of the Sacramento trial.

Opposing counsel responded that by January 27, when Trigger told the court she was ready to proceed to trial, Trigger knew her client had decided to take the stand in the Sacramento case, knew the trial in that case had not concluded by the anticipated date, and knew that trial was going to continue for several more days. Given Trigger's prior failures to comply with court orders, including her failure to comply with the trial setting order, opposing counsel accused Trigger of tactical delay.

The court granted a three-day continuance, stating it expected to see a motion by opposing counsel to exclude the materials Trigger had failed to provide in violation of the pretrial order. The court further stated, "we've already discussed this Court's expectation that you will consider whether or not you wish to seek attorney's fees on behalf of your client for today's appearance."

On the new trial date, February 10, opposing counsel filed a Form FL-300 "Notice of Hearing" requesting sanctions pursuant to section 128.5. Respondent sought $3,575 for the attorney fees and costs incurred in needlessly appearing on February 7 and for preparation of the sanctions motion. Respondent additionally filed a memorandum of points and authorities, and a declaration in support of the sanctions request.

When the case was called, opposing counsel renewed her request that the court exclude all materials Trigger had failed to provide pursuant to the pretrial order. After Trigger acknowledged she had failed to comply with the order, the court granted the motion to exclude.

At the close of evidence, the court asked counsel how they would like to proceed. Opposing counsel stated she would be happy to present closing argument through briefs. Trigger stated she preferred live closing argument, but was happy to provide written argument if the court preferred. Given the nature of the issues, the court stated it would find written briefs "particularly helpful," and asked counsel how much time they needed. The court then set a briefing schedule.

At that point, Trigger stated, "the only other matter that I would bring up" is that "petitioner [ (respondent on appeal) ] has filed an attorney's fees request based on my matter being continued earlier this week." The court suggested Trigger address this in her closing argument briefing. Trigger responded, "[t]hat's what I was going to ask ... for efficiency so that we are not returning again for another court date." After one additional housekeeping matter not relevant to this appeal, trial concluded.

The trial court issued a proposed statement of decision on April 5, ruling in favor of respondent on the requests for orders. It also included in its proposed statement its ruling on the motion for sanctions, ordering Taeb to pay $1,575 and Trigger to pay $2,000.

Trigger filed objections to several aspects of the proposed statement, including the imposition of $2,000 in sanctions directly against her. Trigger repeated that she had been in trial in a serious criminal case at the time of the readiness conference, and stated opposing counsel "was not only aware of this ongoing trial, but aware there was a possibility it could interfere with the present case" and aware Trigger "would be seeking a continuance the following day." Trigger asserted she had wanted to proceed with trial in the instant case, pointing out the matter had been "continued and delayed before, through no fault or request" on her part. She further recited she had arranged for counsel to specially appear, and claimed she had made a motion to continue "at the first available opportunity," which "contained authority for a good cause continuance" the court "cannot ignore." Trigger maintained "there was no conduct to insinuate—let alone prove—that Ms. Trigger acted in bad faith. She was simply in trial and it went longer than reasonably expected."

Trigger further complained opposing counsel had "arrived the morning of trial with a motion seeking attorney fees." Trigger maintained that since attorney fees "were already at issue" in connection with the dissolution proceedings, opposing counsel should have just "updated" her numbers, instead of incurring even more fees preparing a sanctions motion. Trigger further asserted that rather than seeking any additional fees and expenses, opposing counsel should have extended the "professional courtesy" of acknowledging Trigger was not acting in "bad faith" in seeking the short continuance.

Trigger additionally complained no "evidence" had been taken in connection with the motion for sanctions. Rather, at the conclusion of the trial, the court had asked Trigger to oppose the sanctions motion in her closing argument briefing, which she had agreed to do to avoid an additional hearing and additional fees for both parties. Thus, Trigger asserted no "evidence" had been presented in support of the motion, "[o]nly argument." She likewise maintained the court's proposed statement of decision was devoid of reference to any "evidence" supporting the sanctions order. Trigger claimed the court found only that she had "inconvenience[d]" the court and res...